Tentative Ruling

Judge Thomas Anderle
Department 3 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Thomas Felkay v. City of Santa Barbara
Case No: 17CV03351
Hearing Date: Tue Mar 17, 2020 9:30

Nature of Proceedings: Motion for Recovery of Attorney Fees, Expert Fees and Costs

Motion of Plaintiff for Award of Attorney and Expert Fees

ATTORNEYS:

For Plaintiff Thomas Felkay as Trustee of the Empire Trust: Joseph Liebman; Steven K. Kaufmann, Nossman LLP; Richard Monk, Hollister & Brace

For Defendant City of Santa Barbara: Ariel Pierre Calonne, Tom R. Shapiro, Office of the City Attorney; Bruce W. Beach, Shawn Hagerty, Best Best & Krieger LLP

RULING: For the reasons set forth herein, the motion of plaintiff for an award of attorney and expert fees pursuant to Code of Civil Procedure section 1036 is granted in part. The Court awards to plaintiff reasonable attorney fees and costs actually incurred because of this inverse condemnation proceeding in the amount of $1,007,397.00.

Background

On July 31, 2017, plaintiff Thomas Felkay, as trustee of the Empire Trust, (Felkay) filed his petition for writ of mandate and complaint for inverse condemnation arising out of defendant City of Santa Barbara’s (City) denial of Felkay’s application for a Coastal Development Permit to construct a new single family home on real property located at 1925 El Camino De La Luz (the Property). The original complaint set forth four causes of action: (1) administrative mandamus (Code Civ. Proc., § 1094.5); (2) inverse condemnation (permanent taking); (3) inverse condemnation (temporary taking); and, (4) inverse condemnation (damage to Property).

On January 9, 2018, the Court sustained City’s demurrer to the fourth cause of action without leave to amend. At the same time, the Court overruled the City’s demurrer, including on the grounds of ripeness.

On January 19, 2019, City filed its answer to the second and third causes of action of the complaint; on July 6, City filed its response to the petition for writ of mandate (first cause of action of the complaint).

On March 19, 2019, the Court denied Felkay’s petition for writ of mandate, resolving the first cause of action of the complaint.

On May 6, 2019, City filed its motion for summary judgment, or, alternatively, for summary adjudication as to the second and third causes of action of the complaint and for a legal ruling under Code of Civil Procedure section 1260.040.

On July 12, 2019, Felkay filed a cross-motion for a legal ruling imposing liability for inverse condemnation on City under section 1260.040.

On August 6, 2019, the Court denied both the City’s motion for summary judgment or for summary adjudication and Felkay’s cross-motion for a finding under section 1260.040.

A bench trial on the issue of inverse condemnation commenced on October 1, 2019, and continued until October 3, 2019, after which the Court announced its decision and provided its tentative statement of decision.

The Court filed its final statement of decision on the issue of inverse condemnation on October 23, 2019. The statement of decision sets forth the Court’s summary of the evidence at the bench trial and its ruling on this issue.

A jury trial on the issue of the amount of compensation due plaintiff as a result of the permanent taking commenced on January 8, 2020, and continued until January 13, when the jury found that the fair market value of the Property taken was $2.4 million. Judgment was entered on January 16.

On February 5, 2020, Felkay filed this motion for an award of attorney fees and costs pursuant to Code of Civil Procedure section 1036. The moving papers seek a total award of $1,872,267.00.

City opposes the motion. City argues that Felkay’s initial failure to provide copies of the fee agreement makes the claim untenable and that the amount of the fees and costs requested are not awardable or are excessive. (Note: City’s opposition fails to contain the tables required by California Rules of Court, rule 3.1113(f). There are electronic bookmarks for section headings, but no table of contents in the document itself; there is no table of authorities at all. Counsel are reminded of their obligations to comply with all Rules of Court, including those relating to formatting.)

Analysis:

“In any inverse condemnation proceeding, the court rendering judgment for the plaintiff by awarding compensation, or the attorney representing the public entity who effects a settlement of that proceeding, shall determine and award or allow to the plaintiff, as a part of that judgment or settlement, a sum that will, in the opinion of the court, reimburse the plaintiff’s reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of that proceeding in the trial court or in any appellate proceeding in which the plaintiff prevails on any issue in that proceeding.” (Code Civ. Proc., § 1036.)

There is no dispute that the Court rendered judgment for the plaintiff by awarding compensation. Plaintiff has requested attorney fees and expert fees as discussed below. In reaching this ruling, the Court has reviewed all of the admissible evidence presented.

(1) “Actually incurred”

City argues that plaintiff’s motion should be denied because plaintiff has not introduced evidence that Felkay was obligated to pay the attorney fees because no fee agreements were presented in the moving papers. “A client does not incur attorney fees he did not agree to pay.” (Pacific Shores Property Owners Assn. v. Department of Fish & Wildlife (2016) 244 Cal.App.4th 12, 62.)

This issue was addressed in Andre v. City of West Sacramento (2001) 92 Cal.App.4th 532 (Andre). In Andre, the plaintiff obtained an order awarding compensation separately on causes of action for negligence ($32,800.00) and for inverse condemnation ($10,587.50). (Id. at p. 534.) The plaintiff filed a motion for fees and costs pursuant to section 1036. (Ibid.) The defendant city moved to tax costs arguing in part that the plaintiff had not introduced the agreement between the plaintiff and her attorney or introduced any other evidence to establish how much the plaintiff was actually required to pay in attorney fees. (Ibid.) The plaintiff responded by arguing that the fees sought were reasonable and necessary to the litigation and that the plaintiff had a contingency fee agreement with her attorney but that the terms were attorney-client privileged. (Ibid.) The trial court concluded that the contingency agreement was not the critical factor, but found that the plaintiff was entitled to reasonable attorney fees in the amount of $54,017.33 rather than the $103,887.50 sought. (Id. at pp. 534-535.)

On appeal in Andre, the Court of Appeal determined that the fee award must be reversed because there was no evidence that the plaintiff actually incurred attorney fees in the amount of $54,107.33: “Plaintiff did not introduce any evidence at trial to establish the amount of attorney fees she was obligated to pay. Instead, plaintiff emphasizes her entitlement to ‘reasonable’ attorney fees. She ignores the statute’s second requirement: While the fees must be reasonable, they must also be ‘actually incurred.’ If plaintiff did not incur $54,107.33 in attorney fees, she cannot recover that amount, no matter how ‘reasonable’ such an award might be in the abstract.” (Andre, supra, 92 Cal.App.4th at pp. 535–536.)

City argues that the absence of evidence of the fee agreement falls within the rule of Andre and precludes recovery. However, Andre states only that there must be proof that the fees were “actually incurred” of which the fee agreement is one manner of proof; Andre did not restrict proof to the fee agreement. (See Andre, supra, 92 Cal.App.4th at p. 534; see also Avenida San Juan Partnership v. City of San Clemente (2011) 201 Cal.App.4th 1256, 1282 [“there was no written fee agreement or any evidence that the partnership was billed for the attorney’s services”].) The issue addressed in Andre was that a contingency fee agreement apparently provided for payment of fees as a fraction of the recovery and the amount of fees awarded exceeded the entire amount of the award, hence showing that the amount of fees awarded exceeded the amount of fees the plaintiff was required to pay her attorney under their fee agreement. (Andre, supra, 92 Cal.App.4th at pp. 538-539.) Here, each of the attorneys provide declarations stating that they were retained at an hourly rate and that they performed services to the plaintiff at that hourly rate with bills provided. (Liebman decl., ¶¶ 33, 34; Monk decl., ¶¶ 7, 9-20; Kaufmann decl., ¶¶ 3, 7-10.) In reply (which may be addressed at the hearing on this matter), Liebman provides a supplemental declaration attaching his fee agreement (with one sentence redacted), which confirms the payment obligation of fees not to exceed $1.5 million (plus a contingency amount). (Liebman supp. decl., ¶ 1 & exhibit A, p. 2.) The evidence presented is sufficient for the Court to find, and the Court does find, that the amounts claimed as attorney fees and costs were “actually incurred” within the meaning of Code of Civil Procedure section 1036.

(2) “Because of”

Citing the text of section 1036, City argues that all amounts claimed by Felkay prior to the commencement of this action on July 31, 2017, should be excluded. Section 1036 provides for an award of fees and costs “actually incurred because of that proceeding in the trial court.” Many of the fees and costs claimed in this motion were incurred in connection with the administrative proceedings that preceded this litigation. City argues that such fees and costs are not compensable under section 1036. In opposition, Felkay argues that fees and costs were incurred in administrative proceedings that were a necessary prerequisite to this inverse condemnation proceeding, and so fall within compensable fees and costs under section 1036, citing Downen’s, Inc. v. City of Hawaiian Gardens Development Agency (2001) 86 Cal.App.4th 856 (Downen’s, Inc.).

In Downen’s, Inc., the plaintiffs obtained a judgment for inverse condemnation against a government agency. (Downen’s, Inc., supra 86 Cal.App.4th at p. 859.) The Agency agreed to pay the unpaid balance of the judgment by a date certain but failed to do so. (Ibid.) The plaintiffs then filed a petition for writ of mandate pursuant to Government Code section 970.2 seeking to enforce the unpaid portion of the judgment. (Ibid.) Judgment on the petition was entered and the plaintiffs filed a memorandum of costs seeking attorney fees incurred in the writ proceeding. (Ibid.) The trial court granted the agency’s motion to tax costs and the plaintiffs appealed. (Ibid.)

On appeal in Downen’s, Inc., the Court of Appeal construed the phrase “because of that proceeding” in Code of Civil Procedure section 1036. (Downen’s, Inc., supra, 86 Cal.App.4th at pp. 860-861.) The plaintiff argued that the phrase authorizes litigation expenses in the inverse condemnation action and in any proceeding arising from the inverse condemnation action; the agency argued that the language limited litigation expenses to the inverse condemnation action. (Ibid.) The court noted that “[a]n allowance of attorney fees is not required by the just compensation clause [of the constitution] and is subject to legislative discretion.” (Id. at p. 861.) The court identified the policy behind section 1036:

“The courts have held that a property owner’s right to recover costs is even stronger in inverse condemnation than in eminent domain, because when a public agency takes property without instituting condemnation proceedings, it forces litigation.” (Downen’s, Inc., supra, 86 Cal.App.4th at p. 861.) “The purpose of the statutory scheme is clear—‘to prevent property owners from being forced to bear the cost of expensive litigation in order to protect their property interests against unreasonable governmental conduct.’ [Citation.] Here, the public agency’s actions necessitated the filing of a separate proceeding to enforce the unpaid inverse condemnation judgment. By construing section 1036 to permit plaintiffs to recover their litigation expenses, we implement the Legislature’s purpose.” (Id. at p. 862.)

“On the other hand, the Agency’s interpretation would jeopardize the property owner’s recovery and frustrate the Legislature’s goal of making inverse condemnees economically whole. Given the expression of a policy of concern for property owners forced to bring an inverse action to establish a taking, it would be anomalous to conclude the Legislature did not intend that inverse condemnees recover their litigation expenses when a public agency’s conduct requires them to bring a proceeding to enforce the underlying inverse condemnation judgment. To hold otherwise would remove the incentive for an agency to pay a lawful judgment. The agency would gain unfair leverage to negotiate a lower judgment against the hapless citizen who must finance an enforcement action.” (Downen’s, Inc., supra, 86 Cal.App.4th at p. 862.)

The Downen’s, Inc. court thus determined that section 1036 provided a statutory basis for awarding litigation expenses incurred in the later writ proceeding. (Downen’s, Inc., supra, 86 Cal.App.4th at p. 864.) This determination is instructive in addressing the instant issue, but it is not determinative. The litigation expenses at issue in Downen’s, Inc. were expenses incurred to enforce the prior inverse condemnation judgment. As the Downen’s, Inc. court noted, had the underlying judgment in that case been between private entities, attorney fees would be directly awarded in the inverse condemnation case under the Enforcement of Judgments Law. (Ibid.; Code Civ. Proc., § 685.040.) An award of attorney fees in the writ proceeding (the required manner of enforcing a judgment against a public agency) thus finds a strong “because of” connection between the underlying inverse condemnation judgment and the subsequent writ proceeding to enforce that underlying judgment. In the instant case, the disputed litigation costs were incurred before the commencement of this proceeding which led to the inverse condemnation judgment.

California law does not appear to have clearly addressed whether attorney and expert fees incurred in a prior administrative proceeding are awardable under section 1036. Downen’s, Inc. cites cases which are similarly informative but not dispositive. As summarized in Downen’s Inc.:

“In City of San Jose v. Great Oaks Water Co. (1987) 192 Cal.App.3d 1005 …, the appellate court construed section 1235.140 of the Eminent Domain Law, which contains a definition of ‘litigation expenses’ substantially similar to that in section 1036. The city argued that the trial court erred by granting an award of attorney fees for time spent on a public utilities commission (PUC) proceeding subsequent to the eminent domain litigation. The court rejected the argument, reasoning: ‘[T]he PUC valuation proceeding [was] initiated by the City in conjunction with the instant eminent domain action…. [A]ny fees attributable to the PUC proceeding were necessitated solely by the City’s filing of the instant condemnation action….’ [Citation.]” (Downen’s, Inc., supra, 86 Cal.App.4th at pp. 862–863, emphasis added, fn. omitted.)

“In Wallace v. Consumers Cooperative of Berkeley, Inc. (1985) 170 Cal.App.3d 836, …, the appellate court considered whether section 1021.5 permitted an attorney fee award to a prevailing plaintiff for work done in a related civil penalty proceeding filed by the defendant in addition to attorney fees for the underlying litigation. The court considered the award appropriate, reasoning: ‘It is clear that fees were not inappropriate merely because the penalty action was technically a separate action. While that action was not a necessary prerequisite to this action, the two were closely related and involved identical issues.’ [Citation.]” (Downen’s, Inc., supra, 86 Cal.App.4th at p. 863, fn. omitted.)

Again, these other contexts are suggestive but not determinative because these cases do not address administrative proceedings that occur prior to the commencement of the inverse condemnation action. The most persuasive authority for the issue now before the Court comes instead from the federal courts. In Andre, supra, 92 Cal.App.4th at pages 537–538, the court noted that the federal courts’ construction of similar federal statutes was persuasive in the construction of section 1036. The federal Uniform Relocation Assistance and Real Property Acquisition Policies Act in its section 304 (42 U.S.C. § 4654) contains the follow provisions which contain very similar language to the relevant phrases of Code of Civil Procedure section 1036:

“The Federal court having jurisdiction of a proceeding instituted by a Federal agency to acquire real property by condemnation shall award the owner of any right, or title to, or interest in, such real property such sum as will in the opinion of the court reimburse such owner for his reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of the condemnation proceedings, if—[¶] (1) the final judgment is that the Federal agency cannot acquire the real property by condemnation; or [¶] (2) the proceeding is abandoned by the United States.” (42 U.S.C. § 4654(a).)

“The court rendering a judgment for the plaintiff in a proceeding brought under section 1346(a)(2) or 1491 of Title 28, awarding compensation for the taking of property by a Federal agency, or the Attorney General effecting a settlement of any such proceeding, shall determine and award or allow to such plaintiff, as a part of such judgment or settlement, such sum as will in the opinion of the court or the Attorney General reimburse such plaintiff for his reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of such proceeding.” (42 U.S.C. § 4654(c).)

In interpreting section 4654, the federal courts have held that pre-litigation expenses are not awardable under the plain meaning of the statute: “It will be recalled that the governing statutory provision, previously quoted in this opinion, authorizes reimbursement for those expenses—and only for those expenses—incurred ‘because of such proceeding’; and, under the ordinary rules of syntax, the quoted phrase obviously refers back to ‘a proceeding brought under section … 1491 of Title 28 … for the taking of property by a Federal agency’. The plaintiffs’ expenses in connection with this controversy during the time when the plaintiffs were endeavoring to ascertain the nature and extent of their property right …, and trying to obtain a recognition of such right from the Government through negotiations, certainly were not incurred by the plaintiffs ‘because of’ the proceeding which they subsequently instituted in this court under 28 U.S.C. § 1491 after the failure of the negotiations with the Government.” (Emeny v. U.S. (Ct.Cl. 1975) 526 F.2d 1121, 1124, emphasis omitted; accord, Yancey v. U.S. (Fed. Cir. 1990) 915 F.2d 1534, 1543 [“pre-litigation expenses are precluded from reimbursement under” § 4654].) However, under the federal courts’ interpretation of section 4654, the filing date is not determinative. Effort expended in the preparation and filing of the complaint may be compensable if properly documented. (Yancey v. U.S., supra, 915 F.2d at p. 1543; Cloverport Sand & Gravel Co., Inc. v. U.S. (1986) 10 Cl.Ct. 121, 124.)

The interpretation given to the “because of” statutory requirement by the federal courts reflect that some attorney resources occurring prior to the filing of the complaint are necessary to file a complaint. “Pursuant to section 4654(c), expenses associated with filing a Fifth Amendment takings claim are reimbursable; expenses incurred prior and not directly related to the filing itself are not. [Citations.] Although the Court acknowledges that [the plaintiff’s law firm] may have used the factual and legal knowledge it gained by drafting the preliminary report in litigating [the plaintiff’s] takings claim, ultimately this fee was not incurred ‘because of such proceeding.’ [Citation.] As such, it is not within this Court’s purview to award compensation to [the plaintiff] for the litigation strategy memorandum. This memorandum may have been a ‘necessary’ pre-litigation expense, but such expenses are simply not reimbursable under the URA.” (Otay Mesa Property, L.P. v. United States (2015) 124 Fed.Cl. 141, 147; see also Preseault v. U.S. (2002) 52 Fed.Cl. 667, 671–672 [denying reimbursement for appeal of an Interstate Commerce Commission decision, after which plaintiffs brought a takings claim].)

The federal interpretation of “because of” is consistent with the results and reasoning in Downen’s, Inc., City of San Jose v. Great Oaks Water Co., and Wallace v. Consumers Cooperative of Berkeley, Inc., which all addressed fees for proceedings concurrent with or subsequent to the inverse condemnation proceeding. As in Downen’s, Inc., those separate proceedings may functionally be an extension of the inverse condemnation action. The converse is not true. The fact that administrative proceedings here were required before Felkay could have brought his inverse condemnation proceeding (see Hensler v. City of Glendale (1994) 8 Cal.4th 1, 26, fn. 14) does not imply that the administrative proceedings were “because of” the inverse condemnation action.

Neither party has cited to the Court any case in which attorney fees for the pre-litigation administrative proceeding were awarded under section 1036. Because, as Felkay points out, administrative exhaustion is a prerequisite to an action for inverse condemnation, one would expect there to have been at least one case in the 45 year history of section 1036 in which pre-litigation administrative attorney fees were awarded or discussed. The absence of such discussion implies that it has been tacitly understood that the statute does not include such fees, providing further support for the construction that such attorney fees and expenses are not awardable under section 1036.

Specific fees and expenses that are not awardable under this construction of section 1036 are discussed below.

(3) Attorney Fees

Felkay seeks an award of attorney fees as to attorney Joseph Liebman in the amount of $959,075.00, as to attorney Richard Monk in the amount of $79,701.25, and as to attorney Steven Kaufman in the amount of $53,450.00.

As discussed above, the complaint in this action was filed on July 31, 2017. As explained in the declaration of attorney Richard Monk, his attorney time was spent “[i]n pursuing administrative remedies available.” (Monk decl., ¶ 20.) The Court accepts this characterization of the attorney fees sought as to attorney Monk. As discussed above, however, attorney fees pursuing administrative remedies are not available under section 1036. These fees will not be awarded.

As explained in the declaration of attorney Steven Kaufmann, from Spring 2016 to June 6, 2017, “all of [Kaufmann’s] work during this period of time was spent on pursuing and exhausting any and all administrative remedies and appeals available to Mr. Felkay. Once the City Council rejected the appeal on June 6, 2017, the case was referred to attorney Joseph Liebman for the filing and prosecution of the Inverse Condemnation claims.” (Kaufman decl., ¶ 8.) The Court accepts this characterization of the attorney fees sought as to attorney Kaufman. As discussed above, attorney fees pursuing administrative remedies and appeals are not available under section 1036. Attorney fees for time spent through June 6, 2017, will not be awarded. As also discussed above, attorney fees for the time spent on the filing of the complaint is awardable. A review of Kaufman’s time invoices after June 6, 2017, demonstrates that all such time is properly compensable as substantial effort in the filing and prosecution of the complaint. The Court finds 14.2 hours of Kaufman’s time at Nossman reasonable and compensable.

As explained in the declaration of attorney Joseph Liebman, all of his attorney time was spent in the filing and prosecution of this action. (Liebman decl., ¶ 33.) According to Liebman, this constitutes 1,462.5 hours of time up through the filing of this fee motion, plus an additional 13 hours of time through the hearing of this motion. (Liebman decl., ¶¶ 34, 64.) In reply, Liebman acknowledges an error (4.1 hours erroneously counted as 41 hours). (Reply, p. 7.) Allowing for this correction (now totaling 1,438.6 hours), the Court finds the time claimed to be reasonable. This has been a contentious and hard-fought litigation. The number of hours is demonstrated to be commensurate with the effort required given the nature of this litigation. For the same reasons, the Court does not find these hours (or those of other counsel) to be improperly duplicative.

City argues that the hourly rates for Liebman and Kaufmann are unreasonably high. Liebman has presented evidence that his hourly rate is billed in this case at $650; Kaufman has presented evidence that his hourly rate is billed in this case at $500. City’s outside counsel, by contrast, is billed in this case at $390. “The reasonable hourly rate is that prevailing in the community for similar work.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095.) Under the circumstances shown here, the rates billed by Liebman and Kaufmann are reasonable. The fact that City was able to negotiate a better rate for experienced and capable counsel does not in these circumstances make plaintiff’s counsels’ rates unreasonable. The Court also does not find evidence that in 2013 Liebman had a lower billing rate as persuasive that the rate Liebman now seeks is unreasonable.

Based on the foregoing, the Court finds reasonable attorney fees for Liebman in the amount of $935,090 (=(1,425.6 hours + 13 hours) x $650/ hour) and for Kaufmann in the amount of $7,100 (=14.2 hours x $500/hour) for a total amount of attorney fees of $942,190.00.

(4) Expert Fees

Expert fees are claimed by Felkay for experts Jarrett Gorin, Cotton Shires, A. Paul Cook, Brian Barnwell, and Norbert Dall. City objects that many of the costs are improper either as performed prior to the commencement of this action or as being unreasonable or duplicative. As with attorney time, expert services performed in connection with the administrative proceedings are not compensable under section 1036. As the court in Otay Mesa Property, L.P. v. United States, supra, 124 Fed.Cl. at page 147 indicated, the fact that pre-litigation services may be used or useful in the litigation does not mean that the pre-litigation services were actually incurred “because of” the litigation.

The Court finds all of the work of Jarret Gorin actually incurred because of the inverse condemnation proceeding, reasonable, and compensable in the amount of $13,512.00. (Liebman decl., ¶¶ 50-52 & exhibit 4.)

As set forth in the declaration of Patrick Shires, much of the work for which compensation is sought by Shires and his company was performed for the administrative proceedings. (Shires decl., ¶¶ 7, 20.) As discussed above, although this work may have informed Shires with respect to the litigation services rendered, that work is not shown to have been actually incurred because of the inverse condemnation proceeding. Services performed through June 6, 2017, are not compensable. Services performed after June 6, 2017, are shown to be actually incurred because of the inverse condemnation proceeding. The Court finds all post-June 6, 2017, charges to be reasonable, totaling $31,987.03.

As set forth in the declaration of A. Paul Cook, much of the work for which compensation is sought was performed prior to and not “because of” the inverse condemnation proceeding. (Cook decl., ¶¶ 3-5 & exhibit 6.) As discussed above, although this work may have informed Cook with respect to the litigation services rendered, that work is not shown to have been actually incurred because of the inverse condemnation proceeding. Services performed through June 6, 2017, are not compensable. Services performed after June 6, 2017, are shown to be actually incurred because of the inverse condemnation proceeding. The Court finds all post-June 6, 2017, charges to be reasonable, totaling $14,544.45.

The Court finds all of the work of Brian Barnwell actually incurred because of the inverse condemnation proceeding, reasonable, and compensable in the amount of $13,950.00. (Liebman decl., ¶¶ 60-61 & exhibit 7.) City’s argument that Barnwell’s evidence is improper or insufficient goes to the merits of the litigation which the Court does not revisit here.

As set forth in the declaration of Norbert Dall, much of the work for which compensation is sought by Dall was performed for the administrative proceedings. (Dall decl., ¶ 7.) As discussed above, although this work may have informed Dall with respect to the litigation services rendered, that work is not shown to have been actually incurred because of the inverse condemnation proceeding. Services performed through June 6, 2017, are not compensable. Services performed after June 6, 2017, are shown to be actually incurred because of the inverse condemnation proceeding. The Court finds all post-June 6, 2017, charges to be reasonable, totaling $5,164.00.

Accordingly, the Court determines that reasonable expert costs compensable under section 1036 are $65,207.48 (=$31,987.03 + $13,512.00 + $14,544.45 + $5,164.00).

The total award of attorney fees and costs under section 1036 is therefore $1,007,397.00 (=$942,190 + $65,207.48).

(5) Requests for Judicial Notice

City has filed a request that the Court take judicial notice of: (Request for Judicial Notice, exhibits 1 to 7 and 10) summaries of fee and cost requests; (exhibits 8 and 9) portions of the appraisal report and deposition testimony of Brian Barnwell; (exhibit 11) the resume of Bruce W. Beach; (exhibit 12) a copy of the Best Best & Krieger LLP’s fee agreement with the City of Santa Barbara; and, (exhibit 13) a portion of the declaration of attorney Joseph Liebman in another court proceeding. Each of these requests for judicial notice is denied. “[J]udicial notice can be taken of matters not reasonably subject to dispute, but cannot be taken of matters shown to be reasonably subject to dispute.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 760–761.) These items are not indisputably true. Moreover, the declaration (exhibit 13) may have been intended to be filed with the court, but the copy presented here is not a conformed copy and is not shown to be a court record. (See Evid. Code, § 452, subd. (d)(1).) The Court nonetheless considers these items as evidence and weighs them accordingly.